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HPBA's Oral Arguments in DC Court

HPBA's Oral Arguments in DC Court

Today, September 11, 2012, HPBA presented its oral arguments to the U.S. Court of Appeals for the D.C. Circuit on the Department of Energy’s (DOE) regulation of decorative vented gas fireplaces. HPBA was well represented by Barton Day, of the law firm Polsinelli & Shughart, who has worked tirelessly since 2010 on the issue. Barton eloquently laid out why decorative gas hearth products are unlawfully classified as a covered product in DOE’s Final Rule in April 2010, and illegally regulated in that rule and the subsequent rule, issued in November 2011.

The argument – scheduled for approximately 30 minutes – lasted approximately one hour and 20 minutes due to extensive questioning from the panel of three judges. The three judges listened and questioned Barton on how decorative hearth products are different from heater-rated products, how DOE circumvented the statutory process and how DOE has no authority to impose design requirements, such as a ban on standing pilot lights. The judges also questioned the Department of Justice lawyer representing DOE extensively, and appeared skeptical of DOE’s claim that it is not regulating decorative fireplaces but only “distinguishing” them from heater-rated fireplaces. DOE’s lawyer was also questioned on whether the department had the authority to regulate these products under the Energy Policy and Conservation Act. Although it is impossible to predict how a court will rule based on questioning during oral argument, the proceeding appeared to go well for HPBA.

The judges’ decision will most likely be handed down at the end of this year or in early 2013.